Great Repeal Bill – What Great Confusion can we expect to follow? #Brexit

Great Repeal Bill

Impact on Employment Law

Following its notice to leave the EU, the government has now published a White Paper (an indication of legislation it intends to bring forward) to incorporate European law & case law (judgments) directly into UK legislation upon leaving the EU.

The theory is simple: nothing will change immediately upon Brexit, all legislation will continue in place, but from the date of Brexit, the EU will no longer be able to influence or rule upon UK laws. That means the European Court of Justice (the ECJ, or the Court of Justice of the European Union (CJEU) to give it its full English title) will no longer make case law binding in UK courts & tribunals. So, if we Brexit on Thursday, 28th March 2019, any judgment of the ECJ on or after Friday, 29th March 2019 will not be binding on UK courts/tribunals, binding judgments will be limited to those made in the UK courts (and the Supreme Court could overturn ECJ rulings).

Not entirely straightforward, but in this complex exercise, perhaps as clear as we can hope for.

Except, what about opinions? The ECJ normally receives a legal opinion from its senior advisor, the Advocate General, before it makes a formal ruling; this is typically provided months before the formal judgment. This is not binding on the ECJ, although normally followed by the court, but will it carry any influence in the UK, particularly if it applies to a case referred by a UK court/tribunal before Brexit, but isn’t followed-up by an ECJ judgment due to Brexit? i.e. if a question is referred to the ECJ in 2017; the Advocate General gives an opinion in 2018; Brexit happens before the ECJ decide the question, what happens to the Advocate General’s opinion?

Or post-Brexit, how influential would an ECJ judgment be? If an advocate suggests to an employment tribunal judge that the ECJ found in a judgment after Brexit, say for example, that holiday pay should include reference to voluntary & compulsory overtime, while any opinion reached post-Brexit won’t be binding on the employment tribunal, should it even be considered by the tribunal? It would be an influential argument as to what the Working Time Regulations intended when adopted, but while the judgment saying as much wouldn’t be binding at all, could it be entirely ignored? (The White Paper understandably says at paragraph 2.13 that the Bill will not “require the domestic courts to consider the CJEU’s jurisprudence”. But would an employment judge try to suggest that they know better than the ECJ? Will the ECJ have a non-binding influence on our tribunals for years to come? And how long can that be at the discretion of individual employment tribunals, before the Employment Appeal Tribunal is asked to make new case law. How long until we will really know what the laws are, how they should be interpreted, even without any actual changes to them?)

It seems bad enough that parliament (or perhaps just the government, using what are being referred to as Henry VIII clauses) will be amending the laws after Brexit, but the idea that currently-binding case law could be overturned too does provide some certainties for employers up to the day of Brexit, but after that, case law that has been followed for years could, in theory, all be overturned.